Overlawyered: Chronicling The High Cost Of Our Legal System

Public opinion and forfeiture reform

At a meeting yesterday with President Donald Trump, sheriffs complained “that they were under pressure to ease the practice” of civil asset forfeiture, that is, seizing cars, houses, and bank accounts whether or not the owners had been convicted of any crime. Per Reuters, Trump “voiced disagreement with lawmakers who want to change asset forfeiture laws” and “said members of the U.S. Congress would ‘get beat up really badly by the voters’ if they interfered with law enforcement’s activities.”

One reason reform of civil asset forfeiture has made rapid progress lately in legislatures around the country, including my own state of Maryland, is that the public strongly disapproves of the current state of the law when it is explained. In December Cato released a polling study on criminal justice issues, led by my colleague Emily Ekins. Among its findings: “Fully 84% of Americans oppose the practice of police taking ‘a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted of a crime.’ Only 16% approve.” The strong majority extends across all groups of respondents, including Republicans (76%) and those with a highly favorable attitude toward police (78%). Asked what should happen with the proceeds of seizures upon conviction, only 24% of the public favored letting local police departments keep the seized goods or cash, while 76% said it should go instead to state-level coffers. which would reduce the incentive for zealous seizure.

The same opinion survey found that 64% of the American public held a favorable view of their local police, a consensus extending across both parties and all major ideological groups. So if the survey is accurate, the American public supports police while opposing civil asset forfeiture. More: statement from Matt Miller, managing attorney of the Texas office of the Institute for Justice.

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Crime and punishment roundup

  • December Cato conference on criminal justice (Ken White, Harvey Silverglate, Hon. Shira Scheindlin, Kevin Ring, too many others to list) now online (earlier);
  • Justice Scalia and criminal law: Federalist Society National Lawyers Convention panel with Rachel Barkow, Stephanos Bibas, Orin Kerr, Paul Larkin, Jr., and Hon. Stephen Markman (Michigan SC), moderated by Hon. David Stras (Minnesota SC).
  • Nominee Neil Gorsuch and the criminal law [Andrew Fleischman/Fault Lines, William Patrick/Florida Watchdog, Kevin Ring, Eugene Volokh]
  • Are you sure you want to prosecute drug overdoses as murders? [Scott Greenfield]
  • “Three anonymous allegations of criminal activity within the past year” can result in eviction threat under NYC’s no-fault nuisance eviction law [Allie Howell, Economics 21]
  • Think lawmaking was more rational in the old days? How panic in Congress brought us the 1986 drug law [Radley Balko]
  • If your mission is truth-finding or criminal justice, “Start By Believing” is wrong approach [Eugene Volokh on campaign by Arizona Governor’s Commission to Prevent Violence Against Women] Two ethicists propose demoting standard of proof in U.K. rape prosecutions from beyond a reasonable doubt to preponderance of the evidence [Aeon via Community of the Wrongly Accused, which takes a different view]

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“[Recent law grad] sues Twitter for fake account in her name”

A recent graduate of the University of San Diego’s law school is “fairly upset that someone set up a parody Twitter account pretending to be her that portrayed her in an unflattering light. So she has sued. For $100 million. And she’s not just suing the ‘John Doe’ behind the account… but also Twitter. Oh, and also the University of San Diego.” Section 230 generally immunizes online providers like Twitter from liability for material posted by users. [complaint with handwritten details via Eric Goldman; Mike Masnick, TechDirt]

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“So-called”

“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” President Donald Trump tweeted on Saturday morning. It was one of a series of tweets assailing the temporary restraining order issued by a federal judge in Washington state momentarily barring enforcement of the President’s executive order on visas and border crossing. Wait till he gets to the so-called Ninth Circuit!

It is still unusual to encounter the epithet so-called in high official pronouncements, in the United States at least (Pravda used to be fond of tak nazyvayemyye back in the day). But we have come to expect Trump to break new ground in judicial disrespect following his attacks last year as a candidate on federal judge Gonzalo Curiel of the Southern District of California, who was presiding over the Trump University case. I wrote then:

…In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.

Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live.

As I noted at the time, the norm of not personally attacking judges has been eroding for years, not only at the hands of President Barack Obama (who publicly scolded judges not only in his 2010 State of the Union speech but also repeatedly during the court review of ObamaCare, as Josh Blackman documents) but from influential opinion leaders as well. One might cite in particular the extraordinarily vicious interest-group-led campaigns against judicial nominees, currently being cranked up against Judge Neil Gorsuch of the Tenth Circuit but familiar from a dozen earlier nominee battles as well.

In the mean time, like his remarks on Judge Curiel, Trump’s comments on Judge Robart could complicate the efforts of his own lawyers in court: “Either they have to defend the statements that Judge Robart is a ‘so-called judge,’ which you can’t do, or they have to distance themselves from the president, who is their boss,” as University of Pittsburgh law professor Arthur Hellman put it.

And the problems get more serious from there. Writes William Baude: “to call him a ‘so-called’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.”

That issue arises from the difference between criticizing the quality of a judicial decision and criticizing the authority of the judge to issue it:

If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.

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Nominee Neil Gorsuch: no rubber stamp for government

Radley Balko urges civil libertarians, including those on the liberal side, to feel a sense of relief at the selection of Neil Gorsuch: “Trump has nominated a thoughtful judge who seems as likely to challenge inevitable future Trump power grabs as any justice on the court.” [Washington Post] Paul Karlsgodt of Class Action Blawg, who describes himself as a lifelong Democrat, says the high esteem for Neil Gorsuch in the Denver legal community cuts across ideological lines. As Chevron deference for the first time emerges as a popular national issue, here’s the point to keep in mind: “Gorsuch has favored an approach to administrative law that would limit President Donald Trump’s discretion and power.” [Jeffrey Pojanowski, CNN] On Gorsuch’s already-famous ruling in the burping-student case: “That does not sound like a judge who bends over backward to side with the government.” [Jacob Sullum] And Hilaire Belloc: “Always keep a-hold of Nurse/For fear of finding something worse.”.

SCOTUSBlog assembles a long list of reactions from left, right, and other places.

And the Cato podcast series with Caleb Brown has a double entry, the first interview being with Ilya Shapiro:

and the second with Andrew Grossman:

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Asbestos roundup

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President Trump: “No federal funds” for Berkeley?

A President might not find it simple or straightforward to use direct executive orders to cut off funds to universities that tolerate disruption of speech or exclude speakers based on the content of their speech. But the power that the Department of Education and allied agencies have gathered to themselves over university life has steadily mounted, often against little resistance from the universities themselves, as in the Title IX instance. That gives an administration plenty of handles to make its will known, a process previewed in October, as to Trump, in a Chronicle of Higher Education piece. It quotes Alexander Holt, an education-policy analyst at New America, saying: “I could see a Trump administration going crazy on these ‘Dear Colleague’ letters.”

Two years ago I cited several examples of rule by Dear Colleague letter, as I called it, in this area. (More here.) And I noted one big problem with invoking judicial oversight to check the federal government’s power:

It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption.

More: cross-posted, slightly expanded, at Cato at Liberty. And FIRE (Foundation for Individual Rights in Education) has now weighed in on last night’s events at Berkeley surrounding an invited speech by Milo Yiannopoulos. On the federal funding issue, FIRE states its view as follows:

It is true that, under current law, public universities that enforce blatantly unconstitutional speech codes and private universities that violate their own promises of free speech do not face the same potential loss of federal funding for censoring campus speech that they do for violating other federal civil rights laws and regulations. However, FIRE has so far seen no evidence that Berkeley as an institution made any effort to silence Yiannopoulos.

Those who engage in violent and/or destructive protests are ultimately responsible for their unlawful behavior and may be subject to arrest and prosecution by law enforcement. To punish an educational institution for the criminal behavior of those not under its control and in contravention of its policies, whether through the loss of federal funds or through any other means, would be deeply inappropriate and most likely unlawful.

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